HomeMy WebLinkAbout20182841.tiffle2(.1-1,/e,a-o ;,a7
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item - Approve Road Maintenance Agreement for:
DCP Operating Company LP — USR 18-0027
DEPARTMENT: Public Works DATE: 8/22/2018
PERSON REQUESTING: Evan Pinkham
Brief description of the issue:
The Department of Public Works received a request from the applicant, DCP Operating Company LP, requesting
that the Board of County Commissioners consider approving the Road Maintenance Agreement for the pipeline
(USR18-0027). No collateral is required with this agreement.
Weld County Public Works, Planning Services and the County Attorney's Office have reviewed the above -
mentioned signed original document and observed the following:
All Public Works related items, of the "'Improvements & Road Maintenance Agreement According To Policy
Regarding Collateral For Improvements", are found to be acceptable.
What options exist for the Board?
1. Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda.
2. Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda.
Recommendation:
Option I. The Departments of Public Works, Planning Services and the County Attorney's Office are
recommending approval of the Improvements & Road Maintenance Agreement According To Policy Regarding
Collateral For Improvements for USR 18-0027. and that this item be placed on the next regularly scheduled BOCC
Hearing, as part of the Consent Agenda.
Approve
Recommendation
Sean P. Conway
Julie A. Cozad
Mike Freeman
Barbara Kirkmeyer, Pro-Tem
Steve Moren°, Chair
Schedule as Regular
BOCC I fearing Item Other/Comments:
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2018-2841
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ROAD MAINTENANCE AGREEMENT
DCP Operating Company LP — USR18-0027
THIS AGREEMENT is made this \O day of , 201 r, by and between DCP
Operating Company LP, a Delaware limited partne ip, ereinafter referred to as "Pipeline
Operator," and the County of Weld, by and through its Board of County Commissioners, hereinafter
referred to as "County."
WITNESSETH:
WHEREAS, Pipeline Operator is the operator of the proposed pipeline described in the
application to Use by Special Review USR18-0027, referred to as "the Pipeline," which has been
approved by the County, and
WHEREAS, construction of the Pipeline will generate additional vehicles and heavy traffic
for a limited period of time; and
WHEREAS, the County and Pipeline Operator are desirous of agreeing to terms involving
regulation of haul routes, traffic control, and road wear arising from such additional traffic during
the period of construction of the Pipeline permitted under USR18-0027.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and
covenants contained herein, the parties hereto promise, covenant and agree as follows:
Part 1 (of 2): Site Specific Provisions
A. Reserved
B . HauUTravel Routes
1.0 Off -Site Dust Control/Abatement: During construction of the Pipeline, Pipeline Operator is
required to provide dust abatement along affected Haul Route Roads within 1/2 mile of the access
location of the Pipeline, as determined by the County. County will determine the proportionate share
of dust control to be paid by Pipeline Operator. The amount and extent of dust control measures will
be determined by site -specific conditions at the time, as determined exclusively by County personnel.
The County reserves the right to install traffic counters at the access location. The County will have
sole responsibility for determination of the percentage of haul route traffic on all affected roads.
2.0 Obligation to Maintain Current and Future Haul Routes: During construction of the Pipeline,
Pipeline Operator will be financially responsible for the excavation, repair, and patching of any
damage on current or future haul route roads, which in the sole opinion of County has been created
by vehicle traffic to and from the Pipeline. The type and method of repair will be determined by the
County Engineer or his representative. Repairs shall commence within 48 hours of notification by the
County for any roadway damage that exposes the driving public to adverse or unsafe driving
conditions. All other repairs shall commence within thirty (30) days of receipt of Weld County's
written notice.
2.1 Need for Immediate Repairs: In the event of damage to an Approved Haul Route by
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Carly Koppes, Clerk and Recorder, Weld County, CO
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Project traffic that causes an immediate threat to public health and safety or renders the
road impassible ("Significant Damage"), County shall, after inspection, notify Pipeline
Operator of such Significant Damage. Pipeline Operator shall identify the repair required
and shall consult with County on the extent, type, timing, materials and quality of repair
(i.e. temporary versus permanent) within twenty-four (24) hours after receipt of such
notice and shall commence such repair within forty-eight (48) hours after receipt of such
notice. If Pipeline Operator identifies Significant Damage prior to receiving notice
thereof from County, Pipeline Operator may commence repair of such Significant
Damage and shall concurrently notify County of the extent, type, timing, materials and
quality of repair (i.e. temporary versus permanent).
2.2 Repair of Road: On or before December 31 of the calendar year in which County staff
has determined through site analysis and/or pavement testing that a particular haul route
road portion will require paving measures in order to protect the public health, safety, and
welfare, and has budgeted sufficient funds for the following calendar year to pay its share
of the Off -Site Improvement/Repair Costs, County shall notify Pipeline Operator in
writing that the Off -Site Improvements/Repairs shall be undertaken. Within ninety (90)
days of its receipt of County's notice of the need to undertake the road maintenance repairs
and/or improvements, Pipeline Operator shall submit Off -Site Construction Plans and
Cost Estimates to County for review. Pipeline Operator shall have sole responsibility for
the completion of the repairs and/or improvements on or before December 15 of the year
following County's notice of the need for repairs.
2.3 In County's sole discretion, County may undertake the repairs and/or improvements.
Pipeline Operator's payment for its Proportionate Share of the road repairs/improvements
will be calculated as described in this Agreement.
3.0 Proportionate Share of Road Maintenance Responsibilities:
3.1 During construction of the Pipeline, Pipeline Operator shall pay its Proportionate Share of
costs of dust control/abatement, paving, repairs, maintenance, improvements, or future
road replacement of any particular Haul Route Road. Pipeline Operator's Proportionate
Share shall be based upon the percentage of traffic on the road that is attributable to
construction of the Pipeline. County personnel will determine the percentage based on
then current Equivalent Single Axle Load (ESAL) Counts. Pipeline Operator shall not be
responsible for traffic that is not sourced from the construction of the Pipeline.
3.2 The County shall notify Pipeline Operator of County's preliminary determination and
assessment of Pipeline Operator's proportionate share of costs. Prior to County's final
determination and assessment, County shall provide Pipeline Operator with a reasonable
opportunity to review, comment upon and supplement County's data, collection
methodology, and determinations. The County shall review and consider Pipeline
Operator's input prior to making a final determination and assessment. The County shall
have sole responsibility for determination of Pipeline Operator's proportionate share of
costs.
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Part 2: General Provisions
A. General Requirements:
1.0 Permits. Pipeline Operator must still apply for and abide by the terms of any necessary right-
of-way permits, grading permits, and building permits. No work may occur in the County's right-of-
way without a County -issued right-of-way permit and access permit.
2.0 Release of Liability: Pipeline Operator shall indemnify and hold harmless the County from
any and all liability loss and damage County may suffer as a result of all suits, actions or claims of
every nature and description caused by, arising from, or on account of said design and construction
of the pipeline(s), and pay any and all judgments rendered against the County on account of any such
suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in
defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out
of the negligence of the County or its officers, agents, employees, or otherwise except for the liability,
loss, or damage arising from the intentional torts or the gross negligence of the County or its
employees while acting within the scope of their employment.
B. Violations of Agreement and Remedies
1.0 Violation of Terms of Agreement: If in County's reasonable opinion, Pipeline Operator has
violated any of the terms of this Agreement, County shall so notify Pipeline Operator and shall state
with specificity the facts and circumstances which County believes constitute the violation. Pipeline
Operator shall have thirty (30) days within which to either cure the violation or demonstrate
compliance. Thereafter, County may seek any remedy described in this Agreement or otherwise
provided by law.
2.0 Termination of Agreement: Termination Event: This Agreement shall terminate upon the
earliest of the following events:
2.1 Cessation of all Pipeline Construction Activities: Termination of this Agreement shall
occur upon Pipeline Operator's complete construction of the Pipeline permitted by the
USR. A partial cessation of activities shall not constitute a Termination of this Agreement,
nor shall County's issuance of a partial release constitute a Termination. Unless informed
in writing by the Pipeline Operator of cessation of activities, and verified by the County,
cessation shall be presumed if the County determines that the USR has been inactive for
three (3) years.
2.2 Execution of Replacement Agreement: This Agreement shall terminate following
County's execution of a new Improvements Agreement with a new Pipeline Operator or
an Operator who has purchased the Pipeline or has assumed the operation of the Pipeline
permitted by the USR, and intends to make use of the rights and privileges available to it
through the then existing USR.
2.3 Revocation of USR: This Agreement shall terminate following County's revocation of
Pipeline Operator's USR, except that the Pipeline Operator shall only be released from
this Agreement after the successful completion of all improvements required under this
Agreement.
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3.0 Revocation of USR: Pipeline Operator acknowledges that failure to comply with the material
terms of this Agreement constitutes cause to revoke the USR, and County may exercise this option in
its sole reasonable discretion by proceeding with revocation under the then current provisions of the
Weld County Code.
4.0 Court action: Upon notice of violation and failure to cure within the time permitted by this
Agreement, County may seek relief in law or equity by filing an action in the Weld District Court.
C. Miscellaneous Provisions.
1.0 Definitions:
1.1 All references in this Agreement to "County Engineer" shall refer to the any individual or
individuals appointed by the County Engineer to act on his/her behalf.
1.2 All references to "Haul Routes" include identified travel routes for subdivisions;
references to "haul vehicles" include subdivision vehicular traffic, as applicable.
1.3 All references to "Pipeline Operator" shall include any individual or entity, including an
"Operator", who is acts on behalf of the Pipeline Operator regarding this Agreement.
2.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in
whole or in part by Pipeline Operator without the express written consent of County and the written
agreement of the party to whom the obligations under this Agreement are assigned. Pipeline
Operator's release of its obligations shall be accomplished by County's execution of a new
Improvements Agreement with the successor pipeline operator. Consent to a delegation or an
assignment will not be unreasonably withheld or delayed by County. County's rights and obligations
under this Agreement shall automatically be delegated, transferred or assigned to any municipality
which, by and through annexation proceedings, has assumed jurisdiction and maintenance
responsibility over the roads affected by this Agreement. All of the terms and conditions set forth in
this Agreement shall be binding upon the heirs, executors, personal representatives, successors and
assigns of Pipeline Operator, and upon recording by the County, shall be deemed a covenant running
with the land herein described.
3.0 Governmental Immunity: No term or condition of this agreement shall be construed or
interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or
other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable
now or hereafter amended.
4.0 No Third Party Beneficiary Enforcement: It is expressly understood and agreed that the
enforcement of the terms and conditions of this Agreement, and all rights of action relating to such
enforcement, shall be strictly reserved to the undersigned parties, and nothing contained in this
Agreement shall give or allow any claim or right of action whatsoever by any other person or entity
not included in this Agreement. It is the express intention of the undersigned parties that any person
or entity, other than the undersigned parties, receiving services or benefits under this Agreement shall
be an incidental beneficiary only.
5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto and
incorporated herein, contains the entire agreement between the parties with respect to the subject
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matter contained in this Agreement. This instrument supersedes all prior negotiations,
representations, and understandings or agreements with respect to the subject matter contained in this
Agreement. This Agreement may be changed or supplemented only by a written instrument signed
by both parties.
6.0 Board of County Commissioners of Weld County Approval: This Agreement shall not be
valid until it has been approved by the Board of County Commissioners of Weld County, Colorado
or its designee.
7.0 Choice of Law/Jurisdiction: Colorado law, and rules and regulations established pursuant
thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any
provision included or incorporated herein by reference which conflicts with said laws, rules and/or
regulations shall be null and void. In the event of a legal dispute between the parties, Pipeline Operator
agrees that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute.
8.0 Severability: If any term or condition of this Agreement shall be held to be invalid, illegal,
or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced
without such provision, to the extent that this Agreement is then capable of execution within the
original intent of the parties.
9.0 Attorneys Fees/Legal Costs: In the event of a dispute between County and Contract
Professional, concerning this Agreement, the parties agree that each party shall be responsible for the
payment of attorney fees and/or legal costs incurred by or on its own behalf
10.0 Binding Arbitration Prohibited: Weld County does not agree to binding arbitration by any
extra -judicial body or person. Any provision to the contrary in this Agreement or incorporated herein
by reference shall be null and void.
11.0 Authority to Sign: Each person signing this Agreement, and associated Exhibits, represents
and warrants that he or she is duly authorized and has legal capacity to execute and deliver this
Agreement. Each party represents and warrants to the other that the execution and delivery of the
Agreement and the performance of such party's obligations hereunder have been duly authorized and
that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance
with its terms. If requested by the County, Pipeline Operator shall provide the County with proof of
Pipeline Operator's authority to enter into this Agreement within five (5) days of receiving such
request.
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Carly Koppes, Clerk and Recorder, Weld County, CO
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day
and year first above written.
PIPELINE OPERATOR:
DCP OPERATING COMPANY, LP
a Delaware limited partnership
SIGNATURE
PRINTED NAME
424'
D (Lock c; M :los+
TITLE (If Applicable) \ Ce
STATE OF COLORADO
SS.
County of Weld
The foregoing instrument �wf�vas acknowledged before me this 6 day of vs� , 2018,
by , 7 e/ /y 2:0s71,khht.e ///fl6� _1;w/, L
NICOLAS D. HAGENLOCK
WITA 6fficial se
NOTARY ID 20094004084
MY COMMISSION EXPIRES FEB. 11, 2021
ATTEST:
Weld o ant Clerk to the Board
BY:
Deputy rk o the
al.
,12-Z
Notary Public
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Carly Koppes, Clerk and Recorder, Weld County, CO
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BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
teve Moreno, Chair SEP 0 5 2013
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